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What parents can and cannot do without the other’s consent – a brief look at the unilateral exercise of PR
I recently represented a mother who was the respondent to an application made by the father for a Prohibited Steps Order (‘PSO’), prohibiting her from relocating with the parties’ children to another part of England.
The father asserted that the mother required his consent for the proposed move. His application sought to criticise and discredit her for her failure to obtain his consent, despite the fact that she had not actually moved yet and her proposed relocation wasn’t due to take place for a further 8 months.
The mother had notified the father of her proposed move some 11 months in advance. She had given him detailed information about her planned accommodation, the children’s potential schools, her employment, her family support network in the area and her proposals for the children to maintain contact with the father. She had also given a full explanation of the rationale behind her decision to relocate.
The father objected to the move and the parties attended mediation to try to resolve the issue. Mediation failed and the mother informed the father of her continued intention to move, although she gave her assurance that she would not move until one of the children had completed her GCSEs, which were still some 10 months away.
Nevertheless, the father initiated proceedings by way of an urgent application for a PSO, which he made without notice to the mother.
The court declined to list the matter without notice, but did list it for an urgent hearing.
At that hearing the father continued to seek an immediate PSO, prohibiting the mother from relocating. One of the key factors he relied on in pursuit of that order, was his assertion that the mother had indicated her intention to relocate without his consent (despite the fact that she had no intention of moving for another 7 – 8 months).
This highlighted some interesting misconceptions about the exercise of PR and what parents can and cannot do without the consent of the other parent (or any other person holding PR).
According to s.3(1) of the Children Act 1989 (‘CA’), 'parental responsibility' means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.
“Whether or not a parent has parental responsibility is not simply a matter that achieves the ticking of a box on a form. It is a significant matter of status as between parent and child and, just as important, as between each of the parents” (Re W (Direct Contact) [2013] 1 FLR 494, CA).
But can any of these ‘rights, duties, powers, responsibilities and authority’ be exercised unilaterally?
Section 2(7) of the CA states:
‘Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.’
In Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 the Court of Appeal confirmed the way in which s.2(7) should be interpreted. Where more than one person has parental responsibility, each of them may act alone and without the other. Section 2(7) does not however give one party dominance or priority over the other in the exercise of parental responsibility. Each parent has equal parental responsibility, even though the day to day realities of life mean that each frequently acts alone; this applies particularly where the parties live in separate households and one parent is the primary carer. As neither parent has primacy over the other, parents have no option but to come to court to seek a resolution when they cannot agree.
It is therefore clear that parents do have the freedom to act alone in the exercise of their PR.
However, it is equally clear that this freedom is not unfettered. As Dame Buttler-Sloss P (as she then was) stated in Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571, at 577:
“There is, in my view, a small group of important decisions made on behalf of a child which, in the absence of agreement of those with parental responsibility, ought not to be carried out or arranged by a one-parent carer although she has parental responsibility under s.2(7) of the Children Act 1989. Such a decision ought not to be made without the specific approval of the court. Sterilisation is one example. The change of a child's surname is another. Some of the examples, including the change of a child's surname, are based upon statute (see s.13(1) of the Children Act 1989).”
In Re J the court held that circumcision should be added to this special category. The later case of Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148, [2003] 2 FLR 1095) added “hotly contested issues of immunisation” to that ‘small group of important decisions’.[2]
It is therefore clear that whilst there are PR decisions which cannot be taken unilaterally by one parent alone, the number of such decisions are very limited.
Unilateral removal of a child from the UK is included in the list by virtue of s.1 of the Child Abduction Act 1984, which provides that a person connected with a child under the age of sixteen commits a criminal offence if he takes or sends the child out of the United Kingdom without the appropriate consent of all those holding PR (subject to the relevant defences set out in s.1(5) of the 1984 Act).
Similar provisions apply under s.13(1) of the CA in circumstances where a child arrangements order is in force, prohibiting the removal of children from the UK (other than for short periods) without either the written consent of every person who has parental responsibility or the leave of the court.
However, in Re C (Internal Relocation) [2015] EWCA Civ 1305; [2017] 1 FLR 103, Black LJ noted the following:[3]
‘… Where a child arrangements order is in force dealing with what would formerly have been called residence or contact, s.13 provides that no person may remove the child from the UK (other than for short periods) without either the written consent of every person who has parental responsibility or the leave of the court. There is no equivalent provision regulating moves within the UK; the freedom of a parent to move with the child will only be constrained if an order is made under s 8 of the Act, usually in these circumstances a prohibited steps order or a specific issue order…’ (emphasis added).
It therefore seems clear that parents do not need each other’s consent to relocate within the UK, nor do they require a court order and there is no obligation to apply under s.13(1)(b).
However, they may still have to defeat the challenge of an application for a PSO under s.8 of the CA, or for the imposition of a condition to the child arrangements order under s.11(7).
So, the legal debate over whether my client did or did not require the father’s consent to relocate within the UK was largely semantic in the context of the father’s wider application for a PSO under s.8 of the CA.
However, it was relevant to the father’s application for urgent interim orders. Essentially, the mother had done nothing wrong. In fact, she had done so much more than most parents in similar circumstances. She had given the father significant notice of her intended move, provided him with detailed information about her proposals and fully consulted with him about those proposals, including via mediation. She did not require his consent to the move and was under no obligation to make any application herself. It was down to the father to issue an application under s.8 of the CA if he wanted to stop her moving. Consequently, his application for an urgent interim PSO failed.
- The Family Court Practice (The Red Book), Part II Statutes, Children Act 1989 Part I, Introductory, 2 Parental responsibility for children –[2.220[1]
- per Thorpe LJ at [17]
- At [19]
- The Family Court Practice (The Red Book)Part II Statutes, Children Act 1989, Part II Orders with Respect to Children in Family Proceedings, 13 Change of child's name or removal from jurisdiction [2.249[3]]
